Citation Nr: 1340761
Decision Date: 12/11/13 Archive Date: 12/20/13
DOCKET NO. 11-08 714 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois
THE ISSUE
Entitlement to a disability rating in excess of 10 percent for service-connected left ear hearing loss.
REPRESENTATION
Appellant represented by: National Association of County Veterans Service Officers
ATTORNEY FOR THE BOARD
A.G. Alderman, Counsel
INTRODUCTION
The Veteran served on active duty from November 1966 to March 1970.
This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois.
The Board has reviewed the Veteran's physical claims file and file on the "Virtual VA" system to insure a total review of the evidence.
FINDING OF FACT
For the entire appeal period, the service-connected left ear hearing disability is shown to be manifested by loss of hearing acuity measured at Level XI and the nonservice-connected right ear hearing loss is assigned a Level I designation.
CONCLUSION OF LAW
The criteria for the assignment of a rating in excess of 10 percent for left ear hearing loss are not met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.321(b)(1) , 4.85, 4.86, Diagnostic Code 6100 (2013).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Duties to Notify and Assist
With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013).
Proper notice from VA must inform the veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the veteran is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).
The RO's April 2010 letter to the Veteran satisfied the duty to notify provisions relating to the Veteran's claim at issue herein. 38 U.S.C.A. § 5103 (a); 38 C.F.R. § 3.159 (b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim, including the opportunity to present pertinent evidence.
Additionally, the letter notified him that he must submit, or request that VA obtain, evidence of the worsening of his disability and the different types of evidence available to substantiate his claim for a higher rating. Moreover, the letter informed him of the requirements to obtain higher ratings and notified him of the need to submit evidence of how such worsening effected his employment. See Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1275-82 (2009). For these reasons, the Board finds that the content requirements of the notice VA is to provide have been met and no further development is required regarding the duty to notify. See Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004).
The duty to assist the Veteran has been satisfied in this case. The RO has obtained the service and VA treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Moreover, the Veteran has been afforded a VA examination that is adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Specifically, the April 2010 examiner took into account the Veteran's statements and treatment records, which allowed for a fully-informed evaluation of the claimed disability. Id.
As such, there is no indication in the record that additional evidence relevant to the issues being decided herein is available and outside the record. See Pelegrini, 18 Vet. App. at 120. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served.").
Increased Ratings
The Veteran seeks a disability rating in excess of 10 percent for his service-connected left ear hearing loss. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3.
Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).
In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008).
The basis for evaluating defective hearing is the impairment of auditory acuity as measured by puretone threshold averages within the range of 1000 to 4000 Hertz and speech discrimination using the Maryland CNC word recognition test. 38 C.F.R. § 4.85, DC 6100. Puretone threshold averages are derived by dividing the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz by four. Id.
The puretone threshold averages and the Maryland CNC test scores are given a numeric designation, which is then used to determine the current level of disability based upon a pre- designated schedule. See Tables VI and VII in 38 C.F.R. § 4.85. Under these criteria, the assignment of a disability rating is a "mechanical" process of comparing the audiometric evaluation to the numeric designations in the rating schedule. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1993).
For exceptional hearing impairment, 38 C.F.R. § 4.86 states that when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, or when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear is to be evaluated separately. Id.
When rating one ear for disability purposes, to determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman Numeral designation for hearing impairment of "I". 38 C.F.R. § 4.85(f).
In some cases, when an examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties or inconsistent speech discrimination scores, Table VIA will be used, applying only the puretone averages to determine the current level of severity. 38 C.F.R. § 4.85(c).
In the Veteran's substantive appeal, VA Form 9, he contends that the 10 percent rating for left ear hearing loss does not equate to the severity of his disability. He states that the inability to hear normal conversations and inaudible noises from the television and radio is frustrating. He said not being able to hear commands when working on vehicles can be dangerous and should be considered when determining the disability evaluation.
In this case, the only available medical evidence pertinent to the Veteran's claim is the April 2010 VA examination report. The examiner stated that the Veteran has a non-functional left ear. The Veteran reported continued difficulty understanding conversational level speech, especially in noisy environments, and difficulty localizing sound. He denied a recent history of occupation or recreational noise and said he was retired. He had some improvement with hearing aids.
Puretone thresholds measured 105 decibels at 1000, 2000, 3000, and 4000 Hertz. The Veteran's left ear hearing acuity measured a puretone threshold average of 105 decibels with speech recognition of "0" percent. Because the puretone thresholds at each of the four specified frequencies is 105 decibels, the Veteran's left ear exhibits exceptional patterns of hearing impairment and can be rated using Table VI or VIa, whichever results in the higher numeral. 38 C.F.R. § 4.86. In this case, the Veteran's hearing loss corresponds to a numeric designation of "XI" under both rating tables. Since the Veteran is service connected for only the left ear, the right ear is assigned a numeric designation of "I" under Table VI. 38 C.F.R. § 4.85. See 38 C.F.R. § 4.85(f). These combined numeric designations result in a rating of 10 percent under Diagnostic Code 6100. 38 C.F.R. § 4.85, Table VII.
In addition to reporting objective test results, the VA audiologist described the functional effects caused by the hearing disability in the final report. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). In this case, the VA audiologist noted the functional impairment caused by the Veteran's hearing loss, which included the inability to understand conversations and localize sound. The Board also considered his complaints of difficulty hearing the television and radio. Unfortunately, his statements cannot be the conclusive basis for an increased rating. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (finding that lay testimony is competent when it regards features or symptoms of injury or illness). The Board is bound to apply the VA rating schedule, under which the rating criteria are defined and limited by audiometric findings. This criteria measures hearing acuity directly in a controlled laboratory environment. In this regard, the April 2010 VA examination shows no basis for any increase in disability evaluation.
Accordingly, the Board finds that the evidence of record preponderates against a rating in excess of 10 percent for the left ear hearing loss during the pendency of this claim and finds that staged ratings are not warranted. Hart, 21 Vet. App. 505. In light of above, the currently assigned 10 percent evaluation under 38 C.F.R. §§ 4.85 and 4.86 during this time period is correct under the Rating Schedule.
Extraschedular Consideration
While the Board does not have authority to grant an extraschedular rating in the first instance, the Board does have the authority to decide whether the claim should be referred to the VA Director of the Compensation and Pension Service for consideration of an extraschedular rating. 38 C.F.R. § 3.321(b)(1). The governing norm for an extraschedular rating is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or necessitated frequent periods of hospitalization so as to render the regular schedular standards impractical.
The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for the service-connected disability is inadequate. There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria.
If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111 (2008).
Here, the rating criteria reasonably describe the Veteran's disability levels and symptomatology pertaining to his service-connected left ear hearing loss. The April 2010 VA examination report describes the effects of the Veteran's hearing impairment on his occupation and daily life. See Martinak, 21 Vet. App. 447. It was noted that the Veteran wears hearing aids, has difficulty hearing in noisy environments, and has difficulty localizing sound. Such effects do not take the Veteran's case outside the norm so as to require consideration of a higher evaluation on an extra-schedular basis. See 38 C.F.R § 3.321(b)(1). Without sufficient evidence reflecting that the Veteran's disability picture is not contemplated by the rating schedule, referral for a determination of whether the Veteran's disability picture requires the assignment of an extra-schedular rating is not warranted. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008).
Moreover, there is no indication in the record that the Veteran is unemployable in account of his hearing loss. Although the Veteran is retired and not currently working, he has not asserted, and the facts on file do not show, that he is unable to work due to his hearing disability. As such, the Board finds that the issue of entitlement to a total disability evaluation based on individual unemployability (TDIU) has not been raised by the evidence of record as part of the Veteran's claim for an increased rating for left ear hearing loss. See Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009) (holding that the issue of entitlement to TDIU is part of an increased rating claim when that issue is raised by the record); see also Comer v. Peake, 552 F.3d 1362, 1366 (Fed.Cir.2009) (holding that the issue of entitlement to TDIU is raised whenever there is "cogent evidence of unemployability, regardless of whether [the claimant] states specifically that he is seeking TDIU benefits").
For the foregoing reasons, the Board finds that the claim for a disability rating in excess of 10 percent for service-connected left ear hearing loss must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim for an increased rating, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).
ORDER
Entitlement to a disability rating in excess of 10 percent for service-connected left ear hearing loss is denied.
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DENNIS F. CHIAPPETTA
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs